Published in the August 2009 Coal USA Magazine

It’s the rare coal company that has not encountered illicit drug use among its employees. The Substance Abuse and Mental Health Services Administration, or SAMHSA, reported in 2003 that more than 12% of miners had reported illicit drug use and 15.7% heavy alcohol use, with 10% of all miners saying they were dependent on alcohol.

More than one mining accident has been suspected of being related to drug or alcohol use, even if this was not determined to be the cause of the accident. As a result, the Mine Safety and Health Administration announced in 2005 it was working on a drug-free workplace rule.

Several unions, including the Operating Engineers and the Boilermakers, partnered with MSHA during this time to achieve drug-free workplaces and created television ads explaining that “a union workforce is a drug-free workforce”. However, dominant coal industry union the United Mine Workers of America adamantly and philosophically opposed mandatory random drug testing of coal miners.

Meanwhile, in 2007 and 2008, Kentucky and Virginia worked with the coal industry to create drug-free workplace laws for coal mines. These required random drug testing and affected a miner’s certification, to prevent drug abusers from job hopping.

Meanwhile, coal companies were implementing drug-free workplace policies and were required to follow the different laws of each state in which their mines were located. For example, some states restrict random drug testing.

For a brief time in the fall of 2008 it looked like MSHA might bring some uniformity to drug-testing issues in the coal fields by creating a minimum standard rule that required alcohol and drug-free coal mine workplaces and random drug testing of mines (proposed as 30 CFR, Parts 56, 57 and 66). The mining industry applauded MSHA, with National Mining Association safety, health and human resources vice-president Bruce Watzman commending its attempt to “eliminate the gaps that exist across the patchwork of state programs regulating substance abuse at our nation’s mines”.

However, MSHA’s proposed rule contained serious flaws. First, it did not cover all employees working in and around a minesite, who clearly could be hurt by being under the influence of drugs or alcohol while on the minesite.

Second, it incorporated the Department of Transportation’s testing methods, without any consideration for its documented problems or for the advances in testing methodologies.

Third and finally, the proposal required mandatory reinstatement of first-time positive violators, a result that conflicted with many successful zero-tolerance programs in place at coal mines as well as zero-tolerance state licensing laws, such as those passed in Kentucky and Virginia.

The industry criticized MSHA for interfering in the discipline scheme of employers. It should be noted that some companies operate with zero tolerance, some offer employee assistance if employees request it before being selected for a drug test, and still others offer a one-time rehabilitation opportunity, following a positive test with or without a formal last chance agreement.

Not surprisingly, the UMWA also opposed MSHA’s proposed rule. UMWA-represented miners came out in record numbers in Alabama, attending public hearings to show their displeasure with MSHA’s proposed rule.

With so much opposition, MSHA did not issue a final rule before the end of the Bush administration. This author believes that MSHA, under the new administration, is unlikely to pursue a mandatory drug-test rule in the near future, unless a drug-related accident changes the political will to try again.

Thus, without an MSHA-required drug-free workplace rule, coal companies wishing to implement or maintain such programs must continue to observe the unique requirements of each state’s law. Two things remain certain: there is little uniformity among the states, and each year another state considers implementing or changing its drug-testing laws for employers operating in that state.

As noted earlier, Kentucky and Virginia have instituted mandatory substance abuse testing laws for all coal miners. To guard against “job hopping” by substance abusers, a miner’s certification is revoked for a period of time, until the miner can show he or she is drug free. Mining employers can call licensing agencies in Kentucky or Virginia to find out whether a miner’s certificate has been revoked.

Employers in West Virginia, should they choose to do so, can drug screen all applicants after making job offers and test persons for reasonable cause. By case law, companies can also conduct random testing but only of those persons in “safety-sensitive positions”

In Arizona, there is a private-sector workplace drug-testing and alcohol impairment law that protects employers who take adverse employment actions for good faith reliance on a positive test, so long as the tests are performed according to the parameters of that law. In Maryland, drug-free workplaces are not mandatory, but if the employer creates a policy it must comply with Maryland’s statute regarding the types of test that can be administered.

In Pennsylvania and Virginia, it is a misdemeanor to alter one’s specimen to evade a drug test – not so in West Virginia. Meanwhile, Maryland and Colorado protect medical marijuana use.

Despite this patchwork quilt of different drug-testing laws, mine operators have seen the benefits of creating drug-free workplace programs. Most large companies have implemented such programs.

Even UMWA-represented mines have introduced programs, relying on Article III(g) of the Coal Wage Agreement, following the procedures required by the contract and labor law. Meanwhile, Kentucky, since implementing its coal mine drug-testing law in July 2006, has experienced the lowest number of mining fatalities in the state’s history.

Employers who create zero-tolerance programs have seen a reduction in both accidents and absenteeism, although many have lamented the loss of some very skilled people who failed a test along the way. More importantly, these drug-free programs have resulted in those skilled and valuable employees who had a drug or alcohol problem voluntarily entering into rehabilitation programs before being selected for random drug testing. This has also resulted in more successful outcomes long term.

Anecdotally, drug-free workplace programs seem to be slowly changing cultural norms – miners no longer accept a “drug culture atmosphere” in the coal fields. When a coal miner says no to illegal drugs as a recreational activity, their spouse is likely to say no as well.

When a miner and their spouse avoid social gatherings where illicit drugs are used, the drug-free entertainment preference has its own ripple effect in the community. Recreational illicit drug use is simply not an acceptable form of social entertainment.

In the end, it is indisputable that drug-free workplace programs promote safer workplaces. If your company does not have a program, it should consider one and ensure that the program complies with applicable state laws.

If your company does have a program, make sure your human resource and safety personnel are keeping abreast of proposed changes in state and federal laws each year. Recreational drug use and alcoholism are not conducive to safe mining.

Additionally, drug-free workplaces may also create long-term benefits for mining communities, just as surely as a company being involved with a local school or community program would.

*Anna M. Dailey is a partner in the Charleston, West Virginia, office of Dinsmore & Shohl LLP and a member of the labor and employment department. Anna’s practice involves all facets of labor law issues, including defeating union organizing campaigns, representation hearings, contract negotiations, arbitrations, unfair labor practices, strikes, and successorship questions.